Divergent rulings complicate immigration law

McClatchy NewspapersJanuary 8, 2008 

WASHINGTON — Federal law prohibits hiring undocumented workers but it also requires companies to bargain with unions that represent them, under a recent court ruling that showcases the unresolved paradoxes that U.S. immigration policy poses.

While Congress remains stalemated, judges keep interpreting how current immigration law works. The latest ruling by what lawyers consider the nation's second-highest federal court reveals how the results can appear to be confounding.

"It seems somewhat peculiar indeed . . . to order an employer to bargain with a union representing employees that the employer would be required to discharge under the Immigration Reform and Control Act," acknowledged Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the District of Columbia Circuit.

Henderson nonetheless concluded that an agricultural processing company had to bargain with a union even though most of the union's local members were in the United States illegally.

A former North Carolina attorney and Republican judicial nominee, Henderson joined Judge David Tatel, a Democratic appointee, in the 2-1 appellate panel decision. Implications from the ruling, issued without fanfare last Friday, could spread to any state with large numbers of illegal-immigrant workers.

"I understand the idea that, at first blush, it seems contrary to immigration policy to extend legal protections to undocumented workers," Jeff Hirsch, a University of Tennessee law professor, said in an e-mail interview Tuesday. "But that argument ignores the equally important policy of protecting workers."

The D.C. appellate court is important because it spans all federal regulatory agencies. Other appellate courts, such as the 9th U.S. Circuit Court of Appeals in San Francisco or the 11th U.S. Circuit Court of Appeals in Atlanta, cover specific multi-state regions.

Agri Processor Co. is a kosher meat manufacturer in Brooklyn, N.Y. In September 2005, the company's workers voted 15-5 to join the United Food and Commercial Workers union. Company officials refused to bargain, and subsequently told the National Labor Relations Board that they'd discovered that illegal immigrants dominated their work force.

"(The company) put the Social Security numbers given by all the voting employees into the Social Security Administration's online database and discovered that most of the numbers were either nonexistent or belonged to other people," Tatel noted.

Agri Processor argued that undocumented workers couldn't count as the kind of employees who were protected under the National Labor Relations Act. The National Labor Relations Board rejected the argument and ruled that illegal workers could have a collective bargaining vote.

"(It) may reasonably be seen as somewhat peculiar by the average person," one board member conceded in the board's opinion.

The company appealed, noting that the 1986 Immigration Reform and Control Act made it illegal for a company to knowingly hire undocumented workers. By some estimates, nonetheless, 6 million companies nationwide still employ upward of 7 million illegal immigrants.

Courts have struggled to define illegal immigrants' rights ever since Congress passed the 1986 law.

For instance, in a 1999 case involving a furniture company in Redwood City, Calif., judges concluded that illegal immigrants could vote in union elections. On the other hand, the Supreme Court ruled in a 2002 Southern California case that companies couldn't be compelled to provide back pay to illegally laid-off undocumented workers.

"Congress has expressly made it criminally punishable for an alien to obtain employment with false documents," the late Chief Justice William Rehnquist concluded in the 2002 case. "There is no reason to think that Congress nonetheless intended to permit back pay where . . . (an undocumented worker) continued to work illegally, all the while successfully evading apprehension by immigration authorities."

In its new ruling, the D.C. appellate panel noted that the authors of the 1986 immigration law explicitly declared that employer sanctions weren't meant to "undermine or diminish in any way labor protections in existing law." The appellate panel added that Congress "never even hinted" that it intended to change the National Labor Relations Act's coverage of employees.

"Including undocumented workers within the meaning of 'employee' is entirely reasonable," the appellate panel said.

McClatchy Newspapers 2008

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